Supreme Court Narrows Scope of Clean Water Act

In Sackett v. Environmental Protection Agency, decided at the end of May, the Supreme Court substantially reduced the reach of the Clean Water Act (CWA). The issue before the Court was how far the Environmental Protection Agency (EPA) could go in utilizing the CWA to regulate activities on land.

The CWA prohibits the discharge of pollutants into the “waters of the United States” without a permit. However, contentious disputes about what bodies of water are covered by the CWA and whether the land near those waters are also covered have continued for many years, spawning multiple litigations and regulatory back-and-forth. In Sackett the Supreme Court held that the CWA only regulates activities on land that is immediately adjacent to a body of water covered by the CWA so that where the land begins and the body of water ends is indistinguishable, a much more restrictive definition than proposed by the EPA and sought by environmentalists.

The CWA was adopted in 1972 to reduce the pollution in our nation’s rivers, bays and lakes, and has been largely successful.  The Act allows the EPA to impose severe consequences for violations, including criminal as well as civil penalties. There are also mechanisms for private enforcement.

Not surprisingly, the extent of the EPA’s authority under CWA has been the subject of heated debate. As is not uncommon, when Congress drafted the law, it purposely used vague language under the assumption that the regulatory agencies would fill in the details. For example, the CWA states that it applies to “waters of the United States”. But what does that phrase mean? Of course, the political party that controls the regulatory agencies also supplies the details.

There is little debate that the phrase “waters of the United States” includes major rivers, bays and lakes. The EPA defines “waters of the United States” to include all waters that could impact interstate and foreign commerce, as well as wetlands adjacent to or neighboring those waters. However, does it also cover drainage ditches, ponds and small streams?

In 2004 Michael and Chantell Sackett purchased a small lot near a lake in Idaho. In preparation for building a home they began backfilling their property with dirt and rocks. The EPA sent the Sacketts a compliance order informing them that since their property contained protected wetlands, their backfilling violated the CWA. The EPA’s rationale was that the Sacketts’ property contained protected wetlands since it fell within the definition of property “neighboring” waters of the United States. The Sacketts property was separated from the lake by a thirty-foot-wide road.

The Supreme Court disagreed with the EPA’s position and held that the Sacketts’ property was not covered by the CWA. The Court reasoned that the CWA was designed to protect waters – rivers, lakes and bays – and while in some circumstances, where a body of water ends and the land begins is difficult to determine, here, the Sacketts’ property was removed from the lake by a road. The Supreme Court also ruled that only land immediately adjacent to a body of water that was indistinguishable from the water would be covered by the CWA.

The Sackett decision represented a victory for those who believe that the regulatory state has become too powerful. The decision was a disappointment to environmentalist as limiting the effectiveness of the CWA.

Regardless of which side you are on, it is safe to say this will not be the last litigation over the extent the CWA allows government to regulate private property.